The Court of Appeal has overturned recent case law by finding that carers who sleep at a client’s home – to allow them to be on-hand if needed – are not entitled to the National Minimum Wage (NMW) while asleep.
In the case Mencap v Tomlinson-Blake, Lord Justice Underhill decided that workers sleeping-in under this sort of arrangement will only be entitled to have sleep-in hours counted for minimum wage purposes where they are, and are required to be, awake to perform a specific activity.
Daniel Barnett, employment law barrister at Outer Temple Chambers, said: “He [Underhill] then went on to review about a dozen previous authorities. He held at least one of them to be wrongly decided, meaning that the EAT’s decision (which concluded that a multi-factorial approach should be used) was necessarily flawed because it had been attempting to reconcile previous caselaw that it, the Court of Appeal, now considered wrong.”
The decision means that care providers may no longer be liable for an estimated £400 million in back pay, a sum that was likely to cripple the industry and put many smaller care providers out of business.
Kevin Barwick, a partner in RSM Legal’s not-for-profit sector group, commented: “'In the Court of Appeal’s view, the clear intention of the National Minimum Wage legislation was that if a worker was required to sleep-in on site they were not entitled to be paid for the time spent sleeping. This was also backed up by the recommendations made by the Low Pay Commission back in 1998 on which the NMW legislation was based.”
The union Unison, which backed the initial case, called the judgment a huge mistake and said it was at odds with legal precedents and a common-sense understanding of what counts as work.
The union argued that most care workers on sleep-in shifts aren’t sleeping and spend most of the night caring for people, are on constant call and are not free to come and go from their place of work.
“Sleep-in shifts involve significant caring responsibilities, often for very vulnerable people. With too few staff on at night, most care workers are often on their feet all shift, only grabbing a few minutes sleep if they can,” said UNISON general secretary Dave Prentis. “That’s why it’s such a disgrace that workers have been paid a pittance for sleep-ins – with some getting just £30 for a ten-hour shift.”
He added that the blame for this situation lied with government, which he claims is ignoring the social care crisis.
As a result of the judgment, UNISON is considering an appeal to the Supreme Court.
